Sibley v. Menard

• Decision Date: 15 December 1980
• Docket Number: No. 13808,13808
• Citation: 398 So.2d 590
• Parties: Howard Leo SIBLEY, Jr. et al. v. Randy MENARD et al.
• Court: Court of Appeal of Louisiana — District of US

Page 590

398 So.2d 590

Howard Leo SIBLEY, Jr. et al. v. Randy MENARD et al.

No. 13808.

Court of Appeal of Louisiana, First Circuit.

Dec. 15, 1980.

Writ Denied May 1, 1981.

William J. Staser, Baton Rouge and Haydn S. Berey, Livingston, for plaintiff.

Gerald L. Walter, Jr., Baton Rouge, for Southwestern Ins.

John Bivins, Lafayette, for appellants.

James B. Doyle, Baton Rouge, for Lafayette Concrete.

John W. King and Wm. T. Doran, Baton Rouge, for Dept. of Transp. and Development.

Before COVINGTON, CHIASSON and LEAR, JJ.

COVINGTON, Judge.

Plaintiffs-appellees, Howard Leo Sibley, Jr., Ronald Edward Sibley, Helen M. Sibley, individually and as Natural Tutrix of the minor children, Brenda Sibley, Linda Sibley, Charles Sibley and Stephenie Sibley, filed suit against Randy L. Menard, the operator of a 1976 Ford tractor, Will's Trucking, Inc., Menard's employer, and its insurer, Southwestern Insurance Company, ¹ for damages resulting from the death of their father and husband, Howard Leo Sibley, Sr., allegedly caused by the negligent operation of the truck by Randy Menard. Subsequently, the original defendants filed a third party demand against the State of Louisiana, through the Department of Transportation and Development, alleging solidary liability, asking for contribution in the event the original defendants were liable to the original plaintiffs, based on the Department's alleged failure to maintain the highway in a safe condition, particularly in allowing the roadway to be substantially elevated above the level of the shoulder. Thereafter, the original plaintiffs amended their petition to name the State, through the Department, as a party defendant, alleging the failure to properly maintain the highway, or warn of the dangerous condition of the highway. The Department answered and also named the original defendants as third party defendants as to the Department.

After trial on the matter, judgment was rendered in favor of the widow, individually, and as natural tutrix of her minor children, in the amount of $586,048.83, representing $100,000 to her for loss of love and affection, $50,000 for each minor for loss of love and affection, $4,277.83 for funeral expenses, and $277,511 for loss of support to the widow and children allocated as follows: Helen Sibley, 58%; Howard Leo Sibley, Jr., 0%; Ronald Edward Sibley, 3%; Brenda Lee Sibley, 5%; Linda Elizabeth Sibley, 8%; Charles Ray Sibley, 10%; and Stephenie Joan Sibley, 16%. The judgment further awarded Howard Leo Sibley, Jr., the sum of $25,000 and Ronald Edward the sum of $50,000 for loss of love and affection. Also, the widow was awarded, in both capacities, $3,000 as attorney's fees and $1,260 as 12% penalty against Southwestern Insurance Company. In addition, certain expert witness fees were taxed as costs. The judgment provided that the liability of the defendants, Randy L. Menard, Will's Trucking Company, Inc. and the State was solidary. It further provided judgment against Southwestern Insurance Company in the amount of its policy limits as liability insurer of Menard and also against Southwestern as the uninsured motorist carrier of Howard L. Sibley in the amount of $200,000. All of the defendants cast in judgment then appealed.

Subsequent to the judgment and pending appeal, Southwestern settled with the plaintiffs and dismissed its appeal. The settlement provided that the insurer pay to the plaintiffs the sum of $100,000, plus interest, and subrogated the insurer to the sum of $75,000 against the other defendants. The plaintiffs reserved their rights against said other defendants.

The accident occurred on November 1, 1976, between an empty gravel truck operated by Randy L. Menard and a loaded gravel truck operated by Howard Leo Sibley, Sr. on Louisiana Highway 16 in the Parish of Livingston. Immediately prior to the accident, the Sibley truck was proceeding in a southerly direction on Highway 16, a bituminous-surfaced two-lane roadway, away from the gravel pit, while the Menard truck was traveling in a northerly direction on the same highway, headed toward the gravel pit. As Menard entered the curve where the accident occurred, his vehicle went out of control; and as he attempted to regain control, his truck swerved across the centerline into Sibley's lane of traffic and struck the Sibley vehicle with such impact as to cause Sibley's death.

In the trial, the judge found that Menard was negligent in the operation of his vehicle in operating his truck at an excessive rate of speed and failing to maintain control of the same. From the testimony of Randy L. Menard, the driver, and David Dumesnil, his passenger, the trial judge found that Menard "was traveling at a rate of speed which prevented the safe negotiation of the curve in question" and his negligent operation was "a cause in fact of the accident sued on herein." We agree.

The law is clear regarding the responsibility of a motorist under circumstances similar to the instant case. LSA-R.S. 32:64A requires that a motorist not drive at a speed faster than that which is reasonable and prudent, consistent with the width and surface of the roadway and other conditions, such as the weather. Kentzel Truck Lines, Inc. v. State Farm Insurance Co., 342 So.2d 1133 (La.App. 1 Cir. 1977); Mack v. Employers Commercial Union Insurance Company of America, 269 So.2d 470 (La.App. 1 Cir. 1972).

From Randy Menard's own testimony, we learn that he was nervous due to the narrowness of the roadway, the curving of the roadway, and the other sand and gravel trucks which he was constantly meeting. His brother's warnings of the dangerousness of Highway 16, and his operating a truck on this perilous roadway against the express admonitions of his brother, did not add to his sense of well being. Menard was obviously an inexperienced truck driver; he had actually driven an 18-wheeler only a few times; he had gone to no school for this type of training; he had received only casual instructions in driving large trucks from his brother and another truck driver; he did not have a chauffeur's license, and this was the first time he had driven this particular truck.

All of the credible evidence points toward the fact that Menard tried to negotiate this dangerous curve at a rate of speed in excess of 35 M.P.H., which was faster than a reasonable speed at which the curve could be negotiated. Trooper Robert Createur, who investigated the accident, was of the opinion that Menard left the roadway at a "high rate of speed." There can be no question that Randy L. Menard was negligent in the operation of his vehicle. Will's Trucking, Inc., as his employer, is thus liable.

On appeal, Menard relies upon Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). Rue involved a one-car collision. The motorist inadvertently slipped off the roadway onto a dangerously rutted shoulder, which caused the driver to lose control of the car. The question for the State Supreme Court was whether the motorist's "substandard" conduct in leaving the paved surface of the highway barred recovery of the plaintiff's damages. The Court held that it did not. The Rue Court did not go so far as to suggest that the Department's negligence in maintaining its highways absolves a negligent motorist of "fault" toward an innocent third party. Rue merely cleanses the hands of the motorist whose conduct is below standard, in his relationship with the State, through its Department of Transportation and Development (Highways), so that he may recover for damages due to the fault of the State; it does not provide such a motorist with a shield against the claims of an innocent victim.

The primary contention of the Department is that the plaintiffs failed to prove negligence on its part. The Department's position is that the plaintiffs failed to prove that there existed any condition of the roadway at the time of the accident which was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver; and also, that if such an unsafe condition actually existed, the plaintiffs failed to prove that the Department had either actual or constructive knowledge thereof.

In the recent case of Brown v. Louisiana Department of Highways, 373 So.2d 605, 606 (La.App. 3 Cir. 1979), writ denied, 376 So.2d 1269 (La.1979), the Court set forth the responsibilities of the Department in the following language:

"The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows:

" 'The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.'

"Also see U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).

"Included within the Department's duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979)." ²

With respect to the negligence of the Department, the Court below found that:

"(T)he shoulder was not adequately maintained, and the roadway was less than the recommended width at the time of the accident. The roadway, as...